Q Your Honor, this also concludes the Commissar Order in the examination of my client. Among the documents which the prosecution has charged against my client from Document IX C, Document No. 1666 is also included, Exhibit 646. I would like to show this document to the witness and would ask him to comment on it. In the English text it is on page 238, and in the German on page 448.

JUDGE HALE: What’s the number?

DR. VON KELLER: IX C.

JUDGE HALE: Exhibit?

EY DR. VON KELLER: Exhibit 646.

A This a Fuehrer order dated 6 September 1942, designated as Directive #46, Instructions for the Increased Combatting of the Bands in the East. Therein it is stated that the combating of the bands is an operational matter, and that it should be organized and carried out by the operational staffs; and then the further competency is is regulated, always with the emphasis that it is an operation matter. According to the distribution list, the Legal Department received one copy. The matter did not concern me directly. I can’t say at the moment why I received this instruction at all.

Q Did you have anything to do with the working out of the instruction?

A No.

Q Your Honor, this concludes the subjects concerning the war in the East. Before I turn to the so-called Night and Fog Decree, because of the chronological sequence I would like to return again with

a few questions to the basis theme of the defense, that is incidents which occurred before the Night and Fog Decree and which concerns the basic theme of military jurisdiction. I will be as brief as possible.

Witness, yesterday you were talking about the difficulties which the Wehrmacht jurists encountered from all quarters of the Party and the police. Can you refer to any further signs of this fight of the Party which you experienced in the years 1941-1942? Please only deal with the most characteristic points.

A Of course, it is impossible for me to tell the Tribunal about all these matters. I will confine myself to one example from the year 1941. We had particular difficulties with the Reich Commissar Terboven in Oslo. He was a former Gauleiter. The difficulties led to continuous complaints and, in September 1941, I was in Oslo myself in order to find out what was really going on. I originally asked Field Marshal Keitel to contact Terboven, but he sent me instead.

Q Might I ask you, what was the contents of these complaints?

A A number of trials had been held in Norway against the Norwegians because of espionage. They were dealt with by a senate of the Reich Military Court, and Terboven charged the court- it was our highest court- with the fact that its sentences did not allow for the necessity of politics, they were much too lenient and one couldn’t do anything at all with such a court. These complaints went via the channel I have already described, via Bormann to Hitler, and Terboven influenced Goebbels, too, on these lines.

Q What did you do then when you heard about these complaints?

A I went to the Reich Commissar and he received me, in the presence of his Secretary of State and some other men. There was a discussion which lasted several hours, a very complicated discussion, in which he continually charged the courts with the same thing, i.e. that they had taken the inhabitants too much into account.

A Yes, I did, with Terboven himself, and only he spoke for the other side.

Q Can you give a short characterization of Terboven? I don’t think he has been described yet in this court room.

A Well, I can’t say very much good about him. According to my experience he was an extraordinary radical man but, nevertheless, he was very clever and in debate he was extraordinarily skillful, but he was only dominated by his own political ideas.

Q He therefore came from the Party sphere?

A Yes. His complaints were not only referred to the Reich Military Court, but also to the Naval courts in Norway too. The Commanding Admiral in Norway, Admiral Boehm, was not on very good terms with Terboven. I noticed this on the very day I arrived. The adjutant of the Admiral said to me: “You’ve come on the right day. We’ve just written to Terboven’s adjutant to the effect that my Admiral will no longer shake hands with him, only during parades when Norwegians are looking on.” That was the cooperation there. And the Naval courts were attacked by Terboven in the same way as the Reich Military courts. We talked over the incidents and I got his agreement to the fact that if he had any more complaints he would not report it directly to Hitler, but he would apply to the Wehrmacht branches or to the OKW. I flew back again to Berlin and the next experience was in every respect so significant that I have to tell you about it. During the night when I returned, at three o’clock in the morning, Field Marshal Keitel rang me up at home. The Field Marshal said in very great excitement: “There must be a fantastic row going on there in Norway.” Whereupon I said: “But, Field Marshal, I’ve just got back from Oslo this evening. We’ve just made an agreement with Terboven.” Whereupon Keitel said: “Well, he must have forgotten it very quickly. The Fuehrer has ordered me to come to his air raid shelter at three o’clock this morning, and he showed me a

teletype from Terboven to Bormann in which Terboven, using again the wildest expressions, makes complaints about the Naval courts.” The context was this: On the day I flew back to Berlin, a Naval court had passed a sentence and this again aroused Terboven’s displeasure and the complaints about it to the Fuehrer got there quicker than I got to Berlin. The matter progressed in this way: Upon this agitation, the Fuehrer asked for the sentence of the Naval court and first of all asked for the names of the judges by teletype; then the sentence was checked and everything was in proper order. The charges were unfounded, but there was no mention of that later on. First of all, by the immediate channel of the Party, it was again achieved that this rejection of the Fuehrer against our courts was again strengthened.

Q Did such incidents occur frequently?

A Unfortunately, they occurred very frequently, but we only found out about some of them. If one could put things right again it was all right, but we couldn’t do anything about the secret accusations.

Q Did you have any possibility of fighting against Terboven’s methods of fighting, against his direct channel?

A Shortly afterwards I went to see Goering because of another sentence and I told him all this, but he, too, just shrugged his shoulders and said: “Well, we can’t do anything there.” At any rate, he didn’t seem to have any inclination to intervene in the matter.

Q And did you never succeed in reporting to Hitler personally about legal matters?

A No.

THE PRESIDENT: At this time the Tribunal will be in recess for 15 minutes.

Q Witness, I will now turn to a new topic. The prosecution has introduced against you in Book IX A, Exhibit 611. It is Document C-148, page 81 of the English, and 161 of the German. It is an order dealing with the killing of hostages at the ratio of 1 to 50 and 1 to 100. Were you instrumental in this order?

A No.

Q Did the Wehrmacht Legal Department have anything at al to do with questions relating to hostages?

A In 1946 I was interrogated here regarding this question, and I stated that I still recalled a communication or an expert opinion which originated in my department. By coincidence we found this communication here among the documents used in another trial. It is a communication dated 1940, not 1941 as I thought before.

DR. VON KELLER: Your Honor, the defense will introduce this communication in Document Book 4 in behalf of Lehmann as Lehmann Document 203.

BY DR. VON KELLER:

Q May I ask you, what was your position at that time regarding the question of hostages in outline?

A My attitude at that time was in line with the regulations prevailing in the Armed Forces with respect to hostages. I knew a regulation in the Army Printed Regulation G-2. That was an Army Regulation. It is stated in this regulation, and I quote, “Hostages may only be taken upon orders of a Regimental or an independent Battallion Commander or of an equal commander. In billeting them, it is to be considered that they are not prisoners detained on account

of an offense, and superior officers holding at least the rank of a Divisional Commander are to decide on the fate of hostages.”

MR. FULKERSON: May I ask you to identify the regulations from which you just read an excerpt?

DR.VON KELLER: Your Honor, we shall introduce this document as Lehmann Document 202, in Document Book IV in behalf of Lehmann as an excerpt from the Service Regulation for Units of the Professional Army.

BY DR. VON KELLER:

Q Do you recall any other regulation dealing with this subject matter, witness?

A Yes. The prosecution have submitted as Exhibit 42 the Manual for General Staff Service in Wartime. It is Document NOKW-1878, on page 112 of the original.

Q It is Exhibit 42, Document Book II of the prosecution.

A On page 112 of the original you will find under section arabic numeral 11 a regulation about the treatment of hostages, where it is stated, “There is no obligation under international law in respect to the treatment of hostages. The taking of hostages is not expressly prohibited by international law. It is a justification, derived from customs of international law, if demanded by military necessity. It serves as a prevention of war crimes and as a means of pressure, to obtain the adherence to obligations on the part of the enemy. The hostages are responsible with their lives.” I ought to state however that I did not know this regulation, the Handbook for General Staff Service. I saw it here for the first time in Nurnberg.

Q Witness, this morning I put to you a document from Book XV of the prosecution, Document 2329-PS, Exhibit 1147, which deals likewise with the topic of hostages. At this opportunity I wanted to ask, were you instrumental in drafting the regulation just mentioned by me?

Q I will now revert to Exhibit 611 in Book IX A, page 81 of the English, 162 of the German. Would you please tell me whether you were instrumental in the drafting of this order?

A No. In the month in which this order originated, I was scarcely in Berlin at all, but I most certainly would have learned about it if my department had participated in this order.

Q The distribution list, however, which is at the end of this document also includes the Wehrmacht Legal Department?

A Yes, it does. Almost all departments of the OKW received a copy of this decree. Above all, the Foreign Counter-Intelligence “Auslands Abwehr”, which is the agency most concerned.

Q You received the 39th and 40th copy?

A Yes, I did.

Q Upon receipt of this decree, did you have to take any steps if you received this decree at all?

A We certainly did receive it because we are set down in the distribution list, and subsequently I talked about this matter with Field Marshal Keitel on one occasion when the opportunity proffered during a report. Unquestioned, I told him that this development could only be viewed with the greatest anxiety, and that I thought these measures were unwarranted.

Q Did you talk with Keitel frequently about it?

A Yes, twice. The first time he gave me the stereotyped reply: Didn’t have enough troubles of my own? The second time he was a little more accessible, and told me that it was all a Hitler order and Hitler held the view that insurrectionist movements against Germany in the occupied territories were doomed to failure. Hence, it was better to nip them in the bud with great stringency. It only looked bloody, but in reality one was sparing human lives in applying these measures. That was a consideration which I did not hear for the

Q Did you personally or did your department have to deal with individual orders concerning the shooting of hostages?

A No.

Q I will now turn to a new document which the prosecution has introduced against you. It is book IX J, Document RF-272, Exhibit 796, page 114 of the English and 200 of the German. It is a communication by the OKW WR- Legal Department- dated the 24th of September 1941, directed to the Foreign Office in Berlin, and another communication dated the 30th of September 1941, from the OKW Legal Department.

A The first communication is signed by Keitel, the second by my deputy, Dr. Sack. It deals with the fact that generally in petitions of clemency on behalf of members of the occupied countries the Foreign Office was not to be included in the procedure because the OKW had received specific instructions from Hitler. At that time I was not in office, but it is very probable, I would say, almost certain, that upon my return, which took place approximately on the 10th of October, I took note of this communication.

Q.- Do you know anything about the origin of the communication in detail?

A.-I don’t know any more than is evident from the communication itself.

Q.- I will now turn to a new sphere, that is, to the Night and Fog decree the “Nacht und Nebel” decree. I would first like to deal with its origin. Witness, what do you know about the origin of the Night and Fog Decree, the underlying reasons and the topical reason which prompted its issuance?

A.- I have already told the Tribunal that the distrust of Hitler against our justice had manifested itself in different forms. Sometimes on one occasion and sometimes on another. And this distrust is also the root of the decree. The immediate reason, as far as I recall, was as follows. Hitler had reserved to himself the right generally to confirm death sentences against women from the occupied territories, that is, to confirm the petitions for clemency. And in summer 1941 he had commuted the sentence of a French woman who had been active in the resistance movement. She was a very brave woman who had helped many prisoners of war to escape across the boundary into unoccupied France. She had been sentenced to death in France, and Hitler did not confirm the sentence but ordered it to be commuted into a prison term, and on this occasion without any suggestion from outside added that this woman was to be taken to Germany and was to be excluded from the outside world in Germany. This decision rather took us by surprise at the time, and this decision was generalized subsequently by Hitler. In September, as I stated today, I was usually on official trips and at the end of September and beginning of October I spent my leave in the Tyrol. Upon my return I found a lengthy communication of Field

Marshal Keitel in Berlin directed to the Chief of WR- the Wehrmacht Legal Department. In the communication it was stated that Hitler had generalized his decision which he had made in this case of the French woman, which I have just related. The communist subversive activities in occupied countries were getting worse, and sentence by courts, which were imposed after quite a long time, - one didn’t know how long it took, - and which might even be prison sentences, had no effect at all. Hitler had ordered that in the occupied territories only such matters were to be brought before courts in which an immediate death sentence could be pronounced. All other persons were to be taken across the boundary and now the literal expression followed under cover of night and fog, and to be excluded from the outside world in Germany. That would have a deterrent effect, but the imposition of sentences in the occupied territories did not have such a deterrent effect.

Q.- And did this order contain any further details, that is, Keitel’s order?

A.- Yes, it did. It was a lengthy communication written by himself, but I no longer recall further details. What I stated was the basic outline.

Q.- What were you to do on the strength of this communication?

A.- We were to formulate an order pursuant to this directive.

Q.- Did other persons also read this communication?

A.- Yes. It was read by my deputy, Dr. Sack, and my experts; subsequently however I showed it to a wider circle of persons.

Q. Did you discuss the matter with other gentlemen?

A.- Yes, I did.

Q.- Now, what happened in this matter particularly as it relates to Keitel?

A.- I left matters in my desk until Keitel came to Berlin. Then I called upon Keitel to have a long discussion with him alone without any witnesses, and thrashed out this whole matter in great detail with him. I put forward all the arguments I could think of, and I had the feeling that my objections made some impression on the Field Marshal. Our discussion revolved in a circle because he kept harping on the danger of the French resistance movement, saying that in the opinion of Hitler it was a means of safeguarding the security of the occupation troops.